IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120709

Docket: M095471

Registry:
Vancouver

Between:

Eric Densem

Plaintiff

And

Reginald Samuel
Sidal

Defendant

Before:
The Honourable Mr. Justice Betton

Reasons for Judgment

Introduction

[1]            
The plaintiff’s claims arise out of two motor vehicle collisions that
occurred on November 19, 2007 in Burnaby, British Columbia. Both the plaintiff
and defendant were travelling westbound on the Lougheed Highway approaching
Holdom Avenue.

[2]            
The first collision involved a minor impact where the defendant struck
the rear of the plaintiff’s vehicle. The second was a more significant impact
involving the same two vehicles as the parties moved them away from their
positions after the first impact. The actions of each party that led to the
second collision, and thus liability for that second collision, is in dispute.

[3]            
The plaintiff seeks damages for injuries and losses he alleges occurred
in that second collision.

Background as to Liabilty

[4]            
Lougheed Highway is a major thoroughfare through Burnaby. Both parties
were travelling westbound prior to the collisions. Lougheed Highway has two
westbound lanes and as drivers approach Holdom Avenue there is a designated
left-turn lane. To the north, or the parties’ right, there is a paved bicycle lane.
Approximately 125 feet east of the painted stop line for westbound traffic at
Holdom Avenue the paved bike lane widens from approximately 8.5 feet to 16 feet
wide. A detailed diagram of the intersection area as well as a series of
photographs depicting the area are included in Exhibit 3.

[5]            
The incident occurred at approximately 11 a.m.

[6]            
The plaintiff was travelling alone in his 1993 BMW 318i. As he
approached Holdom Avenue traffic ahead of him was stopped. The defendant was
following the plaintiff with a passenger, Michael Riddle. As the defendant
approached the plaintiff’s vehicle which was then stopped, he was endeavouring
to wipe the inside of the driver’s windshield clear of accumulated condensation
or fog. He collided with the rear of the plaintiff’s vehicle. Immediately prior
to the impact he had slowed to a very slow speed and the impact was minor. The
plaintiff confirmed in cross-examination that no injury arose from this first
impact.

[7]            
After the first collision the plaintiff exited his vehicle and made a
quick visual exam of the vehicles and then re‑entered his vehicle.

[8]            
Both the plaintiff and the defendant indicated that they began to move
their vehicles forward, each with the intention of moving to the right paved
shoulder area to exchange relevant information.

[9]            
As indicated, what each driver did as they moved forward is very much in
dispute and I will deal with the competing evidence in my analysis of the
liability issues.

[10]        
The first impact occurred in the north, or right hand, westbound lane of
Lougheed Highway.

[11]        
The second impact involved the front of the defendant’s vehicle
impacting the rear area of the plaintiff’s vehicle. The force of the impact,
and the momentum of the vehicles, caused the plaintiff’s vehicle to rotate counterclockwise
and come to rest facing largely eastbound in the westbound lane area. The
precise resting point and orientation is not entirely clear.

[12]        
Photographs of the damage resulting from the second impact to each
vehicle are contained in Exhibit 2, at tabs 2 and 3 respectively.

[13]        
My collective review of all of the photographs of the plaintiff’s
vehicle shows that the body from the rear window and backward was displaced to
the passenger side.

[14]        
The photographs themselves do not show an obvious point of impact. The
quality of the photographs, the lighting and reflections, are such that fine
details are difficult to make out.

[15]        
Photographs of the defendant’s vehicle show damage primarily just off of
the centre front toward the driver’s side of the vehicle, just at the top of
the bumper and into the engine hood area.

[16]        
Estimators employed by the Insurance Corporation of British Columbia had
occasion to examine each vehicle. They were not tendered as experts, but rather
to confirm that the photographs were accurate depictions of the respective
vehicles and to describe observations made. Mr. Shaw examined the
plaintiff’s vehicle. He pointed specifically to photograph 18 as showing how
the rear bumper of the plaintiff’s vehicle had been displaced to the right, or
to the passenger’s side. He also pointed out that the photograph displayed how
the rear quarter panel on the passenger side was buckled. He also referenced
photograph 21, which also shows displacement of the rear body of the vehicle to
the passenger side.

[17]        
James Hill examined the plaintiff’s vehicle. He pointed to photographs
13 and 11 as showing apparently recent damage to the front centre area of the
plaintiff’s vehicle, which is also evident in photograph 5.

[18]        
No engineering or reconstruction evidence based on the scene or vehicle
damage was presented.

Position of the Parties on Liability

[19]        
The plaintiff and defendant present very different descriptions of how
the second collision occurred.

[20]        
The plaintiff says that upon re‑entering his vehicle and having
motioned to the defendant to pull to the right shoulder he began to do so. He
says that as he was about to pull forward he heard the defendant’s vehicle
engine rev and that he was then “rammed” and spun around. He says that when his
vehicle came to rest following the impact it was almost entirely in the left
westbound lane. He then reversed his vehicle and backed off the travelled
portion of the roadway onto the paved shoulder area described above. In
cross-examination he did confirm he was moving forward at the time of the
second impact, but was moving straight forward and intending to pull to the
right. He says that he did not see the defendant’s vehicle immediately prior or
at the point of impact to be able to comment on its orientation relative to his
vehicle.

[21]        
The defendant confirms that the plaintiff had re‑entered his
vehicle and was moving forward. He says it had pulled partially off to the
right. He indicates that in an effort to get off the roadway more quickly he
moved to pass by the plaintiff’s vehicle on the plaintiff’s left. At that
moment the plaintiff veered left and in front of the defendant resulting in the
defendant impacting the left rear area of the plaintiff’s vehicle. This version
of events was essentially confirmed by the defendant’s passenger, Mr. Riddle.

Analysis of Liability

[22]        
There is no question but that the defendant caused the first impact. He
did not stop his vehicle as required. His attention and vision were obstructed
by the condition of the inside of his windshield and he is at fault for that
collision.

[23]        
This conclusion is, however, of limited consequence given that there is
no suggestion by the plaintiff that any injury resulted from this impact.

[24]        
There is no question but that the second collision was the result of
aggressive and negligent driving by one or both of the plaintiff and the
defendant. The force of the impact was significant enough to displace the rear
bumper and body panels of the plaintiff’s BMW to the extent evidenced in the
photographs. The cost of the repairs was estimated to be $7,000 to $8,000 and given
the value of the BMW it was deemed a total loss.

[25]        
In the absence of any definitive expert opinion or objective evidence,
the determination of liability must be made primarily on the basis of
credibility assessments of the witnesses.

[26]        
Bradshaw v. Stenner, 2010 BCSC 1398 provided a helpful statement regarding
the often challenging task of assessing credibility:

[186]    Credibility involves an assessment of the
trustworthiness of a witness’ testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides (Raymond
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The
art of assessment involves examination of various factors such as the ability
and opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness’ evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness’ testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3
S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence
depends on whether the evidence is consistent with the probabilities affecting
the case as a whole and shown to be in existence at the time (Farnya at para. 356).

[187]    It has been suggested
that a methodology to adopt is to first consider the testimony of a witness on
a ‘stand alone’ basis, followed by an analysis of whether the witness’ story is
inherently believable. Then, if the witness testimony has survived relatively
intact, the testimony should be evaluated based upon the consistency with other
witnesses and with documentary evidence. The testimony of non-party,
disinterested witnesses may provide a reliable yardstick for comparison.
Finally, the court should determine which version of events is the most
consistent with the “preponderance of probabilities which a practical and
informed person would readily recognize as reasonable in that place and in
those conditions” (Overseas Investments (1986) Ltd. v. Cornwall Developments
Ltd. (1993), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have
found this approach useful.

[27]        
Also helpful are the comments of Savage J. in Wu (Litigation
Guardian) v. Zhang, 2011 BCSC 1205 at paragraphs 31 to 37:

[31]      The importance of findings of credibility cannot be
understated. As noted by Rothstein J., speaking for the Court, in F.H. v.
McDougall, 2008 SCC 53 at para. 86:

…provided the judge has not
ignored the evidence, finding the evidence of one party credible may well be
conclusive of the results because that evidence is inconsistent with that of
the other party. In such cases, believing one party will mean explicitly or
implicitly that the other party was not believed on the important issue in the
case.

[32] Faryna v. Chorny, [1952] 2 D.L.R. 354 is
frequently cited on the subject of credibility assessment. Mr. Justice
O’Halloran observed at 357 that:

The credibility of interested
witnesses, particularly in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject his story to
an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions.

[33]      McIntyre J., in R. v. Béland, [1987] 2
S.C.R. 398 at 418-419 said that:

…in the resolution of disputes in
litigation, issues of credibility will be decided by human triers of fact,
using their experience of human affairs and basing judgment upon their
assessment of the witness and on consideration of how an individual’s evidence
fits into the general picture revealed on a consideration of the whole of the
case.

[34]      How then does a trier of fact assess what evidence
is in “harmony with a preponderance of the probabilities”? As Ryan J.A.
recently stated in her concurring reasons in R. v. Sue, 2011 BCCA 91 at para. 47:

Doubtless, a skilled liar or a good
actor can easily feign sincerity. But it is also the case that most people of average
intelligence can tailor a story to fit the circumstances if they put their
minds to it. Thus, a trier of fact will test a story for both its logic and,
with the appropriate cautions, the manner in which it was told.

[35]      In testing the witness’ evidence, a court may
consider the following factors, summarized by Thomson J. in Unique Tool
& Gauge Inc. v. Impact Tool & Mould Inc., [2002] O.J. No. 681
(Ont. S.C.J.) at para. 121:

…[The witness’] ability and
opportunity to observe; his appearance and manner while testifying; his power
of recollection; any interest, bias or prejudice he may have; any
inconsistencies in his testimony and, the reasonableness of his testimony, when
considered in the light of its harmony with the preponderance of the probabilities
that the evidence was credible, believable and reliable.

[36]      In the present case, a relevant factor to consider
in assessing credibility is the party’s interests. However, as Rowles J.A. said
in R. v. R.W.B., [1993] B.C.J. No. 758 (C.A.) at para. 28:

[28] …. Whether a witness has a
motive to lie is one factor which may be considered in assessing the
credibility of a witness, but it is not the only factor to be considered.
…[I]t is essential that the credibility and reliability of the complainant’s
evidence be tested in the light of all of the other evidence presented. …

[37]      For example in Ng v.
Ng, 2011 BCSC 192 the Court rejected the evidence of one person as flawed
because “it relies on the mechanism of coincidence, it includes improbable and
elaborate explanations to explain away telling circumstances and, in connection
with [certain evidence] it relies on a manufactured foundation” (at para. 326).

[28]        
In assessing the accuracy or reliability of either version of how the
second collision occurred, I must consider whether their evidence “harmonizes
with independent evidence that has been accepted”. In this case that
independent evidence consists only of the photographs and the description of
the vehicle damage.

[29]        
It is difficult to understand how the plaintiff’s vehicle could have
been forced into a counterclockwise rotation by the impact based on the
plaintiff’s description of the events. He indicated that he was moving forward,
intending to turn to the right to exit off the travelled portion of the highway.
Those movements do not put his vehicle in an orientation relative to the
defendant’s vehicle that would result in such a counterclockwise rotation. That
post-collision movement is more consistent with the defendant’s version of how
the collision occurred.

[30]        
Similarly, the nature of the damage to each vehicle does not seem to
logically coincide with the plaintiff’s version of the incident. It does fit
with the defendant’s version. The damage is consistent with a force being
applied on the rear, but on the driver’s side and toward the passenger side.

[31]        
That is not to say there are not challenges in viewing the defendant’s
version of the accident against the photographic evidence. His description
would have him moving quite slowly forward to pull in front of the plaintiff’s
vehicle off the travelled roadway when the plaintiff moves aggressively in
front of him. Logic would suggest that the force with which the defendant’s
vehicle had to hit the plaintiff’s vehicle was significant; certainly involving
either some considerable speed at impact or acceleration after initial contact
or both. I am unable to draw any specific conclusions in this respect in the
absence of some reconstruction or other expert evidence.

[32]        
I make these observations, however, to note that there are elements of
each version of how the incidents occurred that are difficult to reconcile with
the evidence. The plaintiff’s description of hearing the defendant’s engine
revving and that the force of impact was significant seems consistent with the
extent of the damage and the amount of force that would seem necessary to cause
his vehicle to spin counterclockwise. On the other hand, his evidence as to the
direction of travel and what he was doing before the accident seems
inconsistent with the spin of his vehicle.

[33]        
Conversely and from the point of view of assessment of the defendant’s
credibility, his description of the events seems consistent with the
photographic and damage evidence, but inconsistent with the amount of momentum,
either by speed or acceleration or both, his vehicle would have had to have
carried into the collision event.

[34]        
I must make my determinations based on what evidence is available and
what conclusions I can draw from it.

[35]        
In cross-examination the plaintiff was asked how his vehicle could have
been spun counterclockwise, given his description of moving straight forward
immediately before the impact. He indicated that he did not see the defendant’s
vehicle at the point of impact and could not explain those dynamics of the accident.

[36]        
Cross-examination of the defendant revealed some inconsistencies between
the defendant’s statement to ICBC and his trial evidence.They are not directly
related to this issue. They included that in his statement to ICBC he said the
first impact occurred in the left lane, when at trial he indicated it was in
the right lane. As noted, the plaintiff says the incident occurred in the right
lane.

[37]        
Another inconsistency is with respect to the amount of time between the
two collisions. At his examination for discovery the defendant had indicated
only 10 to 15 seconds passed, whereas at trial he indicated it was minutes.

[38]        
Having considered all of the evidence, I am not satisfied that either
party has been completely candid or accurate in terms of their description of
the second impact.

[39]        
On June 29, 2012 the Supreme Court of Canada delivered its most recent
decision on causation in Clements v. Clements, 2012 SCC 32. Paragraphs 6
through 12 are as follows:

[6]        On its own, proof by an injured plaintiff that a
defendant was negligent does not make that defendant liable for the loss. The
plaintiff must also establish that the defendant’s negligence (breach of the
standard of care) caused the injury. That link is causation.

[7]        Recovery in negligence presupposes a relationship
between the plaintiff and defendant based on the existence of a duty of care —
a defendant who is at fault and a plaintiff who has been injured by that fault.
If the defendant breaches this duty and thereby causes injury to the plaintiff,
the law “corrects” the deficiency in the relationship by requiring the
defendant to compensate the plaintiff for the injury suffered. This basis for
recovery, sometimes referred to as “corrective justice”, assigns liability when
the plaintiff and defendant are linked in a correlative relationship of doer
and sufferer of the same harm: E. J. Weinrib, The Idea of Private Law
(1995), at p. 156.

[8]        The test for showing causation is the “but for”
test. The plaintiff must show on a balance of probabilities that “but for” the
defendant’s negligent act, the injury would not have occurred. Inherent in the
phrase “but for” is the requirement that the defendant’s negligence was necessary
to bring about the injury ― in other words that the injury would not have
occurred without the defendant’s negligence. This is a factual inquiry. If the
plaintiff does not establish this on a balance of probabilities, having regard
to all the evidence, her action against the defendant fails.

[9]        The “but for” causation test must be applied in a
robust common sense fashion. There is no need for scientific evidence of the
precise contribution the defendant’s negligence made to the injury. See Wilsher
v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per
Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10]      A common sense inference of “but for” causation
from proof of negligence usually flows without difficulty. Evidence connecting
the breach of duty to the injury suffered may permit the judge, depending on
the circumstances, to infer that the defendant’s negligence probably caused the
loss. See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458. See
also the discussion on this issue by the Australian courts: Betts v.
Whittingslowe, [1945] HCA 31, 71 C.L.R. 637, at p. 649; Bennett v.
Minister of Community Welfare, [1992] HCA 27, 176 C.L.R. 408, at pp. 415-16;
Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and
Traffic Authority v. Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

[11]      Where “but for” causation is established by
inference only, it is open to the defendant to argue or call evidence that the
accident would have happened without the defendant’s negligence, i.e. that the
negligence was not a necessary cause of the injury, which was, in any event,
inevitable. As Sopinka J. put it in Snell, at p. 330:

The legal or ultimate burden
remains with the plaintiff, but in the absence of evidence to the contrary
adduced by the defendant, an inference of causation may be drawn although
positive or scientific proof of causation has not been adduced. If some
evidence to the contrary is adduced by the defendant, the trial judge is
entitled to take account of Lord Mansfield’s famous precept [that “all evidence
is to be weighed according to the proof which it was in the power of one side
to have produced, and in the power of the other to have contradicted” (Blatch
v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970)]. This is, I
believe, what Lord Bridge had in mind in Wilsher when he referred to a
“robust and pragmatic approach to the … facts” (p. 569). [Emphasis added.]

[12]      In some cases, an
injury — the loss for which the plaintiff claims compensation — may flow from a
number of different negligent acts committed by different actors, each of which
is a necessary or “but for” cause of the injury. In such cases, the defendants
are said to be jointly and severally liable. The judge or jury then apportions
liability according to the degree of fault of each defendant pursuant to
contributory negligence legislation.

[40]        
Section 1 of the Negligence Act, R.S.B.C. 1996, c. 333
reads:

Apportionment of liability for damages

1 (1) If by the fault of 2 or more persons damage or
loss is caused to one or more of them, the liability to make good the damage or
loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.

(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.

[41]        
Having considered all of the evidence, I am not completely satisfied
that either party has been completely candid or accurate in terms of their
description of the event. It is my conclusion that the plaintiff did move into
the path of the defendant’s vehicle and thus was negligent. At some point,
either immediately before or after the plaintiff made that manoeuvre, the defendant
accelerated, significantly increasing the force of the impact that resulted
from the plaintiff’s action.

[42]        
Applying Clements, it is clear the second collision would not
have occurred but for the negligence of each of the defendant and the plaintiff.

[43]        
The British Columbia Court of Appeal, in Cempel v. Harrison Hot
Springs Hotel, (1997) 43 B.C.L.R. (3d) 219, said in such cases the court
must determine the degree of fault of each person and that fault is
blameworthiness. 

[44]        
In these peculiar circumstances, it is my conclusion that s. 1(2)
of the Negligence Act is applicable and liability will be apportioned
equally between the plaintiff and defendant.

Background as to Damages

[45]        
The plaintiff seeks awards for non-pecuniary damages, loss of future
earning capacity and special damages.

[46]        
The parties have agreed that special damages should be assessed at
$3,364.98.

[47]        
In his written submissions, plaintiff’s counsel articulates the injuries
the plaintiff says were caused by the accident, as follows:

He has been left with chronic
headaches, chronic pain in his neck and shoulder, and has been left with
chronic cognitive and psychological symptoms.

[48]        
The plaintiff was born December 9, 1968. He is single.

[49]        
The plaintiff graduated from high school in 1988. Before graduation he
had part-time work. Following graduation he worked in a variety of jobs in
Saskatchewan, Manitoba and Alberta before moving to Whistler in 1992. For the
two and one-half years following that move, he worked at a rental store and in
the hospitality industry.

[50]        
Sometime in 1994 the plaintiff started his career driving a bus. That
started with driving locally for Blackcomb Mountain in what had been a school
bus. That evolved into tour bus driving in several different capacities with
several different employers over the years.

[51]        
The first such employer was Glacier Coach. There the plaintiff did
primarily “shuttle” runs between Vancouver airport and Whistler. This started
in 1995.

[52]        
The plaintiff moved from Whistler to Vancouver, and was next with Gray
Line in a part-time capacity for a period of months before securing a position
with Perimeter in approximately 1997. He stayed with that company as a driver
for 11 years before it went bankrupt. Generally that job involved trips between
Vancouver and Whistler in winter months, and tours of the Rocky Mountains in
the summer months.

[53]        
Operating tour buses often included in its duties loading and unloading
passenger luggage. With Perimeter, the Whistler trips included a lot of that,
whereas the Rocky Mountain tours were much less physically demanding.

[54]        
The nature of the work with tour bus employers was such that there were
frequent temporary layoffs. That resulted in the plaintiff making employment
insurance claims.

[55]        
At the time of the accident the plaintiff was not working. There were
two reasons for this. The first was that he had been laid off eight days before
the accident. The second was that five days after his lay off he had injured
his groin. That injury is discussed further below. It prevented him from
working for several months.

[56]        
Obviously the motor vehicle collision occurred during that interruption
in his employment. He returned to his employment with Perimeter in March or
April of 2008. The date of this return to work was impacted by a separate
incident referred to below as the yoga injury. Thereafter the plaintiff
continued full time with Perimeter until it went bankrupt in the fall of 2008.
The plaintiff’s employment ended October 18, 2008.

[57]        
On January 15, 2009 the plaintiff secured similar work to that which he
had with Perimeter, with Pacific Coach Lines, again doing Whistler runs. To the
date of trial he remains an employee on call, but has had very little work in
fact with them.

[58]        
The plaintiff also worked with Vancouver Trolley for approximately one
month.

[59]        
Since June 2011 the plaintiff has worked operating tour-type buses,
transporting employees in the oil industry in Fort McMurray. There is no
luggage movement involved with this employment.

[60]        
During his work history, the plaintiff has made a number of claims to WorkSafeBC
and has obtained treatment from several sources related to the conditions
giving rise to those claims. Primarily the claims have related to his low back.

[61]        
The earliest such claim in evidence was February 17, 2001 when he
injured his back loading luggage.

[62]        
On January 2, 2005, while loading ski gear, he slipped and fell,
twisting his back. It appears he was off work as a result of that until April
2005.

[63]        
During treatment for his low back complaints, and in the fall of 2005,
he completed a history form that indicated his low back issues had been
persistent. In that form one of the questions responded to was, “What do you
believe is wrong with you?” The plaintiff’s response was, “Too many injuries,
wrong job.” That same form prompted the plaintiff to mark from a list, issues
with which he had difficulties. He included headaches, fatigue, tightness in
shoulders, chest pains, disc problems, and stomach trouble.

[64]        
In February 2006 WorkSafeBC documents completed by the plaintiff again
indicate chronic issues with his low back.

[65]        
On March 25, 2006 the plaintiff completed a further claim with
WorkSafeBC in relation to his low back for an aggravation while loading
luggage.

[66]        
In another report of injury to WorkSafeBC dated December 7, 2006, he
referred to a November 6, 2006 injury. There he indicated that the problem had
been continuing from incidents two years previous. He described the situation
in that form as, “This is the result of continuous damage being done to lower
back from very heavy luggage in winter to very long periods of sitting.”

[67]        
On June 20, 2010 the plaintiff was involved in a motor vehicle collision
while at work, when another driver failed to stop at a stop sign in an RV. He
described the incident in that WorkSafeBC form as:

A R.V. did not stop at a stop
sign. I had the thru-way. I hit the R.V. and was shaken (almost thrown out of
the bus if it wasn’t for my seatbelt!!!) Stood hard on the brake during impact
and held the steering wheel tight. The whole body was shaken from impact.

The areas of injury indicated by the plaintiff included
his right knee, right hand and his neck.

[68]        
As a youth the plaintiff was active in sports, including football, track
and cycling. He was an accomplished cyclist and a member of the Saskatchewan
provincial cycling team. He participated in national-level competition,
including the Canada Summer Games. He stopped competitive cycling after Grade
12, but remained physically active, including attending at gyms, mountain
biking, rollerblading, and skiing.

[69]        
When he moved to Vancouver the plaintiff returned to cycling for
recreation, and about a year later he began training on his bike. Sometime in
2007, prior to the motor vehicle collision, he decided to return to competitive
cycling.

[70]        
Specifically, the plaintiff trained and raced at the Burnaby Mountain
Velodrome. A velodrome is an indoor, steep banked, oval track. The banking in
the corners is approximately 45 degrees. Exhibit 2 is a group of photos of the
Burnaby facility.

[71]        
Leading up to the motor vehicle collision the plaintiff set his sights
on trying to set a record in a master’s category in track cycling. While doing
weights at the gym as part of the training for that goal, he injured his groin.
This was only three days before the motor vehicle collision. The injury
occurred while doing leg presses with 450 pounds of weight. In fact he was on
his way to treatment for that injury at the time of the motor vehicle
collision.

[72]        
The groin injury limited the plaintiff’s activities for some time. It
was the source of a claim to Great West Life, his disability insurer.

[73]        
On February 25, 2008 the plaintiff completed another application to
Great West Life for disability insurance coverage. There he described the
nature of his condition as, “back injury/herniation”. He indicated that the
incident had occurred on February 15, 2008 while doing yoga. He indicated he
was unable to work, noting, “I can hardly walk or move.”

[74]        
Recovery from the groin injury and the yoga injury overlapped and
combined to keep him off work until approximately April 2008.

[75]        
The plaintiff’s physiotherapy records indicate that the plaintiff
attended on December 14, 2007 with a complaint of an elbow injury, which
occurred three days prior while “carrying heavy weights.”

[76]        
The plaintiff did return to his competitive cycling in 2008. It was
after that time that he began to train with Jamie Shankland. Mr. Shankland
was called as a defence witness. He described himself as a sprint track
cyclist who had competed in cycling at national and some international events.

[77]        
In 2009 Mr. Shankland and the plaintiff trained together during the
summer months. Mr Shankland also provided the plaintiff with coaching
assistance. Their training would be for two to three
hours per session, two to three times per week. Mr. Shankland
characterized those training sessions by saying “It’s never easy. It’s very
vigorous all the time.”

[78]        
The two worked together until spring 2010 and then again in the fall of
2010. In training on the bikes in the velodrome they would reach speeds of 60
to 68 kilometres per hour. During one of those training sessions on October 18,
2008 the plaintiff crashed at approximately 40 kilometres per hour. This
resulted in his attendance at UBC Hospital emergency room on October 19, 2008
with complaints of shoulder and hip pain. On October 24, 2008 the plaintiff
submitted a disability claim to Great West Life, indicating that he was unable
to work as a result of his injuries.

[79]        
The plaintiff and Mr. Shankland also did gym and weight training
together. This involved lifting significant weights. The plaintiff pointed out
in his evidence that around the time of his fall off of his bicycle he was able
to bench press approximately 300 pounds.

[80]        
In August 2009 the plaintiff competed in the velodrome in the national
competition, in the Masters category, and came in second in the small group of
competitors in that category. He participated in various other races in 2009.

[81]        
Since the motor vehicle collision, the plaintiff has had other medical
issues and injuries. In December 2008 he was admitted into the hospital twice –
once with a small bowel obstruction and later with pancreatitis requiring
surgery. In June 2009 he suffered an avulsion fracture of his left ankle while
stepping off a curb.

[82]        
The plaintiff described problems with his memory and generally being in
what he described as “being in a fog” after the motor vehicle collision. He
said that he has had difficulty thinking about, or dealing with anything more
than “what is right in front of [him]”. As a result, his previous tendency to
meticulous housekeeping has ended; he has not been able to get focused on steps
toward possible career changes or pursuing career opportunities. In respect to
the latter, he testified that he procrastinated in responding to and lost a
potential opportunity to become a bus driver trainer.

[83]        
He testified that he now has a lack of ability to focus on tasks and a
lack of organization and motivation. A review of his evidence suggests that
this is his most significant ongoing complaint. These complaints have been
referred to collectively by his treating physicians as “cognitive symptoms”.

[84]        
The onset of these cognitive symptoms was sometime after the motor
vehicle collision, and was summarized in Dr. Cameron’s report as quoted in
paragraph 88.

[85]        
Just a short time prior to the motor vehicle collision the plaintiff’s
common-law relationship of about seven years ended. He has remained on friendly
terms with his former common-law spouse and she gave evidence on his behalf at
the trial. She confirmed his indication that before the motor vehicle collision
he had been a meticulous housekeeper.

Medical Reports/Evidence

[86]        
In support of his claim the plaintiff relies on the reports of Dr. Badii,
a rheumatologist, Dr. Cadesky, his general practitioner, and Dr. Cameron,
a neurologist.

[87]        
In his report, Dr. Cadesky concludes that the plaintiff suffered
soft-tissue injuries to his head, neck, left arm and back, as well as a
concussion with post-concussion syndrome and ongoing cognitive and physical
difficulties.

[88]        
In his report of December 13, 2010 Dr. Cameron concludes that the plaintiff
did not suffer a concussion or any type of brain injury and therefore did not
have post-concussion syndrome. He concludes that the plaintiff has probably
developed psychological problems following the motor vehicle collision and that
is the source of his ongoing cognitive complaints. Paragraphs 26 and 31 of his
report read as follows:

26.       It is my opinion that Mr. Densem has suffered
with pain and discomfort as a result of soft tissue and musculoskeletal
injuries to his neck and shoulder area sustained at the time of this accident.
It is my opinion that Mr. Densem has probably developed psychological
problems … following this accident. Mr. Densem indicated that he was
assessed by a psychotherapist and that he was told that he was suffering with a
post traumatic stress disorder and depression. Mr. Densem reported to me
that all of his symptoms including his headaches, pain and discomfort and
cognitive problems are worse now as compared to initially following the
accident. Mr. Densem actually indicated to me that his memory problems
were onset two years prior to my neurological assessment which would have been
in 2008. This would indicate to me that his memory problems were delayed in
onset following this accident, and therefore certainly more in keeping with a
patient who has developed psychological problems as the cause of his cognitive
dysfunction. It is my opinion that any cognitive complaints in the case of Mr. Densem
are due to pain and discomfort, sleep disturbance pattern, and development of
psychological problems following this accident.

31.       Mr. Densem remained off work until April 2008
and he returned to work as a bus driver full time. He was provided with the
easy routes initially because of potential aggravation of pain and discomfort.
It is my opinion that Mr. Densem was completely disabled and remained off
work until April 2008 because of pain and discomfort as a result of soft tissue
and musculoskeletal injuries that he sustained at the time of the motor vehicle
accident of November 19, 2007. It is my opinion that Mr. Densem
subsequently has remained partially disabled following return to work
predominantly because of ongoing psychological dysfunction and, to a lesser
degree, pain and discomfort as a result of soft tissue and musculoskeletal
injuries that he sustained at the time of the accident of November 19, 2007. I
would defer to the specialists in psychology and/or psychiatry to provide an
opinion regarding ongoing psychological dysfunction, its relationship to the
accident of November 19, 2007 and its long-term prognosis.

(emphasis
added)

[89]        
Dr. Badii concludes the most significant ongoing sources of
functional impairment for the plaintiff are the cognitive symptoms. He agrees
with neurological assessments indicating that there was no concussion or brain
injury and that a psychological or psychiatric assessment would be needed to
understand the cause of the cognitive symptoms. His report of February 21, 2011
says at paragraphs 35 and 37 to 39 as follows:

35.       I agree fully with Dr. Cameron that Mr. Densem
appears to have a number of psychological issues that are still going on. I
would recommend strongly that he be assessed by a psychiatrist or experienced
clinical psychologist on the issue of possible PTSD and whether it (or other
psychiatric or psychological diagnoses) could explain some or even most of Mr. Densem’s
cognitive symptoms.

37.       Based on the assumptions stated under Pre-Accident Diagnosis,
the mechanism of injury (severe whiplash-type injury in which Mr. Densem
hit his head against the window or roof of the car towards his left side, and
in which his car was deemed a total loss) as well as the temporal relationship
between the accident and the onset of symptoms, it is my opinion that there was
a causal association between the motor vehicle accident of November 2007 and
subsequent symptoms of neck pain, headaches and dizziness.

38. With respect to other cognitive symptoms as well
as the possible diagnosis of PTSD, I would defer to the opinion of a specialist
in Psychiatry.

39.       I would comment that at the present time Mr. Densem’s
cognitive symptoms appear to be a major source of functional impairment for
him, perhaps to a greater extent than his neck pain and cervicogenic headaches,
based on what I could obtain from him during a single three-hour interview.

(emphasis
added)

[90]        
Dr Badii says in his opinion the prospects of further recovery from his
neck pain, dizziness and headaches is less than five percent.

Analysis of Quantum

[91]        
A review of the evidence, including the cross-examinations of Mr. Densem
and the doctors, gives rise to some concern about Mr. Densem’s candor
regarding his non-accident related injuries and the extent of his post-accident
activity.

[92]        
In his evidence at trial the plaintiff minimized the significance of his
crash on his bicycle at the velodrome in October 2008. Until confronted with
his application for disability benefits to Great West Life, he denied any
injury of consequence and doubted that he had made a claim to Great West Life
for benefits.

[93]        
Despite the medical records and the application to Great West Life for
disability benefits arising from the yoga injury, the plaintiff, until
confronted with those documents at trial, denied even doing yoga.

[94]        
On the whole the plaintiff’s description at trial of his pre-existing
back problems was indicative of an effort to minimize their significance.

[95]        
In his cross-examination Dr. Cameron confirmed that he was unaware
of several facts, including the June 2010 bus accident, the bicycle crash at
the velodrome in the fall of 2008, and the extent of the plaintiff’s post-motor
vehicle collision weight lifting activity. It is of concern that the plaintiff
would not have taken steps to ensure Dr. Cameron was fully aware of this
information before being asked to formulate his opinion.

[96]        
With that additional information, Dr. Cameron confirmed in cross-examination
that he would modify his opinions expressed in his report and conclude that
other factors were contributing to the partial disability and that “the degree
of physical limitation [from the collision] is probably actually pretty mild.”

[97]        
It is of some interest that during his cross-examination Dr. Cameron
was asked about the plaintiff’s report to WorkSafeBC regarding the collision
with the RV where the plaintiff reported that he “could barely walk”. Dr. Cameron
indicated that such statements in the face of the observation that it was not
literally true would prompt him to question the psychological condition of the
patient who reports in such a manner.

[98]        
In respect of Dr. Cadesky, there are concerns about his willingness
to associate complaints to the motor vehicle collision in the face of records,
information and knowledge that might suggest otherwise. His attribution of back
pain to the accident is not consistent with the record he kept, or the records
generally, in relation to Mr. Densem. I note as well that Dr. Cadesky
was clearly in error in concluding that the plaintiff had suffered a
concussion.

[99]        
I conclude that the plaintiff suffered soft-tissue injuries to his neck
and shoulders in the motor vehicle collision. I do not accept that there has
been any low back injury from the motor vehicle collision. Indeed low back
injury is not among the list of injuries set out by counsel in his argument.

[100]      I
conclude that the best evidence of the severity of the soft-tissue injuries
that the plaintiff did receive is the plaintiff’s activity level. The plaintiff
had returned to a high level of function, including competitive cycling and a
rigorous training schedule which included high demand weight training. He had
also returned to work, and the evidence suggests that he did so successfully.
He was able to perform his employment, which involved long periods of sitting
mixed with periodic demanding physical work. This was despite his ongoing back
problems which are not a result of the accident.

[101]     The
credibility issues referenced prompt me to view the plaintiff’s evidence with
some caution. It is my conclusion that the plaintiff is not a heroically stoic
individual who fought through pain and physical limitations to be able to
engage in the activities that he did. Rather, he was able to do so because he
had in fact limited or minimal ongoing symptoms.

[102]     In respect
of the cognitive complaints there are three challenges. The first is the same as
with the soft tissue injuries, trying to assess just how serious those problems
actually are.

[103]     There are
two additional but related challenges. The first is the absence of any specific
diagnosis. Despite the recommendations of both Dr. Badii and Dr. Cameron,
no psychological opinion was provided at trial. It would seem that having a
clear diagnosis would be of assistance in developing a prognosis. More
importantly it would assist in resolving the related challenge.

[104]     That related
challenge is the evidence (or lack of it) of causation. I have earlier referred
to the very recent statements of the Supreme Court of Canada in Clements.
That decision refers to that court’s earlier decision in Athey v. Leonati,
[1996] 3 S.C.R. 458. The latter was decided in the context of determining what injuries
were caused by the defendant.

13 Causation is established where the plaintiff
proves to the civil standard on a balance of probabilities that the defendant
caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R.
311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).

14 The general, but not conclusive, test for
causation is the "but for" test, which requires the plaintiff to show
that the injury would not have occurred but for the negligence of the
defendant: Horsley v. MacLaren, [1972] S.C.R. 441.

15 The "but for" test is unworkable
in some circumstances, so the courts have recognized that causation is
established where the defendant’s negligence "materially contributed"
to the occurrence of the injury: Myers v. Peel County Board of Education;
[1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All
E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A
contributing factor is material if it falls outside the de minimis
range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R.
v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R.
979.

16 In Snell v. Farrell, supra,
this Court recently confirmed that the plaintiff must prove that the
defendant’s tortious conduct caused or contributed to the plaintiff’s injury.
The causation test is not to be applied too rigidly. Causation need not be
determined by scientific precision; as Lord Salmon stated in Alphacell Ltd.
v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by
Sopinka J. at p. 328, it is "essentially a practical question of fact
which can best be answered by ordinary common sense". Although the burden
of proof remains with the plaintiff, in some circumstances an inference of
causation may be drawn from the evidence without positive scientific proof.

17 It is not now
necessary, nor has it ever been, for the plaintiff to establish that the
defendant’s negligence was the sole cause of the injury. There will frequently
be a myriad of other background events which were necessary preconditions to
the injury occurring. To borrow an example from Professor Fleming (The Law of
Torts (8th ed. 1992) at p. 193), a "fire ignited in a wastepaper
basket is . . . caused not only by the dropping of a lighted match, but also by
the presence of combustible material and oxygen, a failure of the cleaner to
empty the basket and so forth". As long as a defendant is part of the
cause of an injury, the defendant is liable, even though his act alone was not
enough to create the injury. There is no basis for a reduction of liability
because of the existence of other preconditions: defendants remain liable for
all injuries caused or contributed to by their negligence.

[105]     The
plaintiff had a number of challenging issues that he was dealing with unrelated
to the motor vehicle collision,

[106]    
Dr. Badii’s report stated at paragraph 33:

As some of the neurologists
alluded to, pain can cause some of these cognitive symptoms. However, in my
experience, even severe pain is usually not associated with profound cognitive
changes.

[107]     The earlier
quotes from the reports of both Dr. Badii and Dr. Cameron state they are
unable to comment on the connection between the motor vehicle collision and the
cognitive complaints. Further, for the reasons set out above, Dr. Cadesky’s
report is of little assistance in this regard.

[108]     Essentially
I am left with the evidence of the plaintiff. On his evidence the cognitive
symptoms certainly arise after the motor vehicle collision. Accepting that the
best evidence is that the genesis of these cognitive symptoms is a
psychological condition, it is impossible for me to conclude from that evidence
that the psychological condition is caused by the accident. The plaintiff has
had numerous other medical issues and injuries. He has had interruptions in his
employment and the end of a common-law relationship. It is simply not possible
to reach the conclusion that these cognitive symptoms are as a result of the
motor vehicle collision.

[109]     In
summary, the plaintiff did receive soft-tissue injuries to his neck and shoulder
areas. He has had ongoing lower back pain that pre-dated the motor vehicle
collision, and was not affected in any material way by the motor vehicle
collision. He has had a number of subsequent events and injuries that required
medical intervention and affected him for various periods of time. I accept the
evidence and observations of Dr. Cameron in cross-exanimation that the
effect of the motor vehicle collision injuries (that is the physical injuries) has
been mild.

Damage Assessments

[110]    
In respect of non-pecuniary damages, I have in mind the comments of the
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, in particular
paragraphs 45 and 46, as follows:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful
reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and
the "need for solace will not necessarily correlate with the seriousness
of the injury" (Cooper-Stephenson and Saunders, Personal Injury
Damages in Canada (1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual case"
(Thornton at p. 284 of S.C.R.).

[Emphasis added.]

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton,
[2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[111]     In its
argument the plaintiff suggests that an appropriate assessment for this
category of damages is $80,000 to $100,000. The defendant argues that an award
in the range of $10,000 to $20,000 is appropriate. Each counsel has referenced
some authorities in support of their positions. I do not intend to address
those authorities in detail. Obviously they are helpful in the process of
comparison and identifying what other courts have done in situations of varying
degrees of similarity. Based on my conclusions of fact and assessment of the evidence,
an appropriate award is $20,000.

[112]    
In respect of the claim for loss of capacity to earn income, the B.C.
Court of Appeal recently reviewed and summarized a number of authorities
dealing with that category of damages. Perren v. Lalari, 2010 BCCA 140 referenced
the decision of Bauman J. (as he then was) in Chang v. Feng, 2008 BCSC
49. Paragraphs 75 and 76 of Chang reads as follows:

[75]      Justice Donald, for the court, noted the trial
judge’s use of the phraseology from Palmer v. Goodall (1991), 53
B.C.L.R. (2d) 44 (C.A.) (at ¶ 17 and 18):

[17]      But the language in
question there was used in the context of appellate review and, with respect,
it cannot be transposed to an original analysis at the trial level. The
claimant bears the onus to prove at trial a substantial possibility of a future
event leading to an income loss, and the court must then award compensation on
an estimation of the chance that the event will occur: Parypa ¶ 65.

[18]      When the record is
examined according to that approach, I cannot see the basis for a substantial
possibility giving rise to compensation for diminished earning capacity. There
being no other realistic alternative occupation that would be impaired by the
plaintiff’s accident injuries, the claim for future loss must fail.

[76]      This appears to be an
express direction to first enquire into whether there is a substantial
possibility of future income loss before one is to embark on assessing the loss
under either approach to this head of loss, in particular, under the capital
asset approach as well. (I note that Justice Russell arrived at a similar
conclusion in Naidu v. Mann, 2007 BCSC 1313 and see also Bedwell
v. McGill, 2008 BCCA 6, ¶ 53.)

[113]    
In paragraphs 30 to 32 of Perren the court concludes:

[30]      Having reviewed all of these cases,
I conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:

1.         A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at para. 27],
and

2.         It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made [Andrews at 251].

[31]      Furthermore, I conclude that there
is no conflict between Steward and the earlier judgment in Pallos.
As mentioned earlier, Pallos is not authority for the proposition that
mere speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss. If
the plaintiff discharges that burden of proof, then depending upon the facts of
the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown. The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych. A plaintiff may indeed be able to
prove that there is a substantial possibility of a future loss of income
despite having returned to his or her usual employment. That was the case in
both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

(emphasis in original)

[114]     In this
particular case I am not satisfied that the plaintiff has satisfied the burden
of establishing a loss of capacity to earn income. He has, in fact quickly
after the accident, returned to his pre-accident employment. He reports that the
most significant ongoing problem for him is his cognitive issues which have not
been proven to be caused by the defendant. In the result, there will be no
award for damages under this category.

[115]    
I am not aware of any factors that would influence an award as to costs.
Counsel are at liberty to make submissions to me in that respect.

“D.A. Betton J.”
The Honourable Mr. Justice Betton